The Supreme Court Greenlights Racial Profiling

In what’s become an increasingly common practice in recent months, the Supreme Court recently used its “emergency docket” to lift a lower court injunction barring the use of racial profiling by federal immigration officials. The Court’s order allows ICE officers in Los Angeles to continue aggressive “roving patrols” and detention practices based on a person’s appearance. While the Court’s order was unsigned, it was accompanied by a rare concurring opinion by Justice Brett Kavanaugh, who argued on both procedural and substantive grounds that the raids are legal. 

In this episode, Washington Monthly Legal Affairs Editor Garrett Epps speaks with contributing writer Peter Shane about the flaws in Kavanaugh’s reasoning. This transcript has been edited for length and clarity. 

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Garrett Epps: Peter, you posted a very powerful piece entitled, “A Blinkered Supreme Court Blocks Relief from Racial Profiling.” It’s a scathing discussion about the civil liberties aspect of a decision the Supreme Court announced on September 8th called Vasquez-Perdomo. Exactly what was this decision and did the Court actually say anything?

Peter Shane: The Court as a Court did not speak. There was no majority opinion for however many justices supported what the Court did. What the Court did was stay injunctive relief that had been granted by the United States District Court for the Central District of California against the targeting practices of ICE agents based on four criteria—whether the person appeared to be from Mexico or Central America;  whether the person was speaking Spanish or English with a Spanish accent; whether they were in a location where it was suspected that undocumented immigrants might be looking for work; and whether they themselves appeared to be engaged in a low wage occupation. 

I suppose the people who think this is a rational set of criteria might be thinking of a particular parking lot of a particular hardware outlet that is known to be a sort of site for this.

But it was clear this could also be a bus stop. There was no explicit geographic constraint on where people could be targeted. So the lower court was persuaded that these criteria were casting a net so wide that the only reason for singling someone out would be their race or ethnicity.

And we’re talking about a district in California where the court found that 47 percent of residents self-identify as Hispanic or Latino. So this was a net that was going to catch a lot of people who were not appropriately targets. 

So the court issued an injunction that saying ICE can continue to target people but cannot use these four criteria as its exclusive net. There has to be something more particularized to decide to go after a specific individual.

The government appealed that to the Ninth Circuit and asked for a stay of the order. The Ninth Circuit did not stay the injunction. So the Trump Administration followed its now not-so-unusual procedure of going to the Supreme Court using their so-called “emergency docket.” 

They asked the Court to withdraw the injunction or to stay the injunction while the case was being heard on its merits. 

The Supreme Court is not required to issue an opinion when they act on these applications, so what happens is you get a decision which is, “yes, the application for the state is granted or no, the application is denied.” And whether anything is said at all is completely discretionary with individual justices. We’ve seen in a lot of cases with civil liberties or separation of powers implications that there’s often a dissent written by one of the liberal justices. But what’s unusual in this particular instance—and I guess this counts as a kind of public service—is that Justice Kavanaugh wrote an opinion concurring in the denial of the application.

Strictly speaking, we don’t know whether all the other five conservatives voted for the application. It only takes five votes. There might have been another dissenter in there who decided not to join the dissent. We don’t know. And we don’t know what the other five justices and the six justices supermajority were thinking. But we do know what Justice Kavanaugh is thinking. 

Garrett Epps: Let me ask you about that opinion by Justice Kavanaugh, because he makes some fairly interesting factual statements. And you can take his opinion and compare those statements to the actual record that’s even available on the court’s own website. And I want to read something from the Ninth Circuit opinion. This is the Ninth Circuit discussing why it is affirming the lower court’s injunction:

“Plaintiff Jason Brian Gavidia is a U.S. citizen born and raised in East Los Angeles. He identifies as Latino. On the afternoon of June 12th, he stepped onto the sidewalk outside of a tow yard in Montebello, California, where he saw agents carrying handguns and military-style rifles. One agent ordered him to stop right there. Another ran toward him. The agents repeatedly asked Gavidia whether he was an American. They repeatedly ignored his answer. I am an American. The agents asked Gavidia what hospital he was born in. He explained he did not know which hospital. The agents forcefully pushed him back against the metal gate, put his hands behind his back and twisted his arm. An agent said again, what hospital were you born in? He again explained he did not know, but answered East Los Angeles. He then told the agents he could show them his real ID. The agents took his ID and his phone, kept his phone for 20 minutes and never returned his real ID.”

Now, does that match the description that Justice Kavanaugh gives of what’s going on in the streets of Los Angeles?

Peter Shane: It does not, and that’s relevant in two ways. Garrett, as you know, one of the things that the Court is supposed to consider in granting an injunction is the balance of equities: the interests that the government has in avoiding the injunction and the interests that the individuals have in maintaining the restraint on the government. 

The Kavanaugh opinion really minimizes the interests of the individuals. He says, as far as undocumented persons are concerned, their interests are minimal, if any, in resisting interrogation. And as for citizens, the only thing that they’re risking is what he describes as a “brief interrogation.”

So that  makes it sound—and I think you and I have joked about this—as if there’s this of polite, “Excuse me, sir, might I interrupt your stroll down the street for just a moment while I inquire into your citizenship status?” And that picture, the record shows, is completely unrealistic.

Kavanaugh recognizes that this is not exactly an accurate description of the typical encounter by acknowledging there are allegations of force involved, but then he also says that this issue is not technically before the Court. 

And I know Justice Roberts takes great umbrage when this is mentioned in the same breath as any discussion of his Court, but what came to my mind immediately was Korematsu, where Fred Korematsu was arrested and charged with violating what was technically an exclusion order in California that was issued as part of the campaign to intern Japanese American citizens during World War II. The order started not with “Thou shalt be interned,” but rather, “We’re creating an exclusion zone, and you have to remain outside.” And the only place you could go outside was the transportation center to take you to the internment camp. So he’s challenging his conviction on the basis that this is a racially bigoted unconstitutional violation of his rights to due process under the Fifth Amendment.

And the Court says, we’re being tasked here as if what we’re being asked to do is to sign off on some program about the internment of American citizens. That’s not our issue. Our issue is the validity of this exclusion order, and that’s the only issue technically before us. Technically, okay. But it blinks reality in just a completely irresponsible way, not to recognize or acknowledge the fact-finding that’s happened in the courts below—fact- finding to which the Supreme Court is supposed to be differential. It’s shocking.

Garrett Epps: In addition to this discussion about the record, Kavanaugh does something else that is potentially very dangerous for other cases of this sort, and that is to apply a sort of unusual approach to what we lawyers call “standing”—or the right to bring a lawsuit. 

The fact that I happen to disapprove of the new ballroom in the White House doesn’t mean I have the right to sue. I’d have to show that somehow it’s injuring me. 

Kavanaugh’s opinion has a fascinating discussion about standing—can you talk a little bit about that? 

Peter Shane: What you say is correct, both about the importance of standing and Kavanaugh’s unusual treatment of it. It’s not just that you have to show that you’ve been injured, although that’s obviously key. In the ballroom example, it’s perfect. What the Court would say is that maybe you were injured as a taxpayer, although Trump insists that no public funds are being used.

But that injury is not different from anybody else who’s offended by the ballroom, so that’s not an individuated enough injury to have standing. But the other thing you have to show is that the relief you’re asking for would actually make you better off. And what Justice Kavanaugh says is that this case is like an earlier case in which the Supreme Court denied standing, partly, to an individual who challenged the way the Los Angeles police was encountering potential suspects. 

That case is City of Los Angeles versus Lyons, and it involved a motorist, Adolf Lyons, who was stopped by police and told to get out of his car. The record indicates he didn’t resist, but he was subjected to a chokehold that rendered him unconscious and damaged his larynx. 

He sued as an individual on the ground that he was entitled to damages for the injury he sustained. But he also asked for an injunction against future police misconduct using a chokehold. And the Court said, well, you can sue for damages if you prove your case, and

the damages will repair the injury you have suffered. But you don’t have standing to bring the case for a future injunction unless you can show that you are likely to be subject to or potentially subject to a chokehold again that this injunction would protect you from. And of course, he couldn’t show that. So they said he had no standing for the injunction.

What immediately occurred to me is that this is not a good precedent for dismissing standing here. 

Why do I say that? So the plaintiffs in this case were actually asking for certification as a class action, which would have potentially reached a great many more people. The lower courts hadn’t dealt yet with the certification question. So we’re not concerned in this case about what’s going to happen to a single individual who would have to be as lucky as the lottery winner who got two tickets or as unlucky as the person struck by lightning twice. We’re talking about a group of people, all of whom pretty much share exactly the target criteria that ICE is going after.

What the Supreme Court knew by the time the Lyons case was argued is that the LA police department had already adopted an explicit policy against chokeholds. So the justices might have said, “Look, not only does Mr. Lyons have to be the unluckiest person in the world to get choke held twice, but given the background policy context, there’s every reason to think that what he’s asking for he’s getting voluntarily from the department already, which is a promise not to do this again.”

 In this case, Secretary Noem of the Department of Homeland Security has called the district judge an idiot. She and ICE executive in Los Angeles have doubled down on their right to do what they’re doing. Noem said they’re not changing anything, and there is no reason to think that the agency is at all chastened by its repeated mistakes in terms of who it’s targeting and how they’re treating people. In fact, as is often said of this administration, cruelty seems to be the point.

Garrett Epps: The core of what has happened in this case is that from now on, until there is a resolution on the merits, ICE can go around the streets of this district and stop people, shake them down in the way we described, purely on the basis of their race, their appearance, clothing, the way they talk, and maybe their vicinity to low wage work.

If those are the criteria that can be used to create the opportunity for a search or detention, that’s a real change from what this Court has claimed to be a bedrock principle of constitutional law. 

Peter Shane: I don’t walk around life day by day as an angry person, but there are some cases that really get to me. And a case that really got to me from some years ago is called Parents Involved in Community Schools v. the Seattle School District. And it’s a case in which the Supreme Court was asked to review the constitutionality of voluntary affirmative action plans or student assignment plans in Seattle and Louisville, Kentucky, that were intended to maintain a reasonable likelihood of racially-integrated school experiences.

Neither of these plans was particularly aggressive in the use of race. If a child wanted to transfer from their neighborhood school to another school, school authorities would ask if the school to which they wanted to transfer was already a racially identifiable school, and if it was, would this make the problem yet more conspicuous? And if so, the transfer would be stopped. That’s all that was at stake. The dissent in that case said, “You know, this is really not burdening anybody and is commendable educational policy. We should be applauding this.”

 But Chief Justice Roberts writing for the majority said no, that there was no interest at stake adequate to support what the school districts were doing. And he said “the way to end racial discrimination is to stop discriminating by race.” And that quote captures this formalistic view of what it takes to create racial equality. We saw this resurface in Students for Fair Admissions v. Harvardas well. So the majority seems really wedded to that idea if race is being used to provide uplift, even in a relatively non-zero sum kind of situation like Seattle and Kentucky. 

But now let’s say I’m standing at a street corner, wearing jeans and a work shirt. I have a lunch bag. So it looks like I’m not going to the Duquesne Club in Pittsburgh for my next business meeting. And I’m standing next to a brown-skinned, Spanish-speaking individual dressed identically with the same lunch bag. He could be stopped, but I would not be, and the only differentiation is race.

What happened to “the way to stop racial discrimination is to stop discriminating by race”? Suddenly, we don’t care because the people who are targeted are people whose interests we just don’t value. And the other thing to be said is that the Court is also not acknowledging how stigmatic this is. Now it’s kind of okay in the Court’s view, not just for ICE, but for anybody walking around to say, you know, it’s reasonable for me to suspect that the person walking across the street is actually an “illegal.”

This is just an intolerably demeaning way of looking at one another that the Court is implicitly sanctioning. And I would like to have thought it was un-American.

Garrett Epps: Well, apparently not. And it seems to me that what is happening is really eroding the kind of egalitarian foundations of a democratic republic.

Citizenship is now something that is in doubt for millions of people.  The government can simply say, “You know, we think people like you aren’t citizens, so we’re going to start shaking you down.” We’re living in a very different country than we thought that we were living in, and it’s something that people should be outraged about.

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